Garner v. Gerrish and the renter's life estate: teaching a new concept of "home.".

Author:Jones, Bernie D.
Position:New York

"If you wish to secure for yourself a right not to be moved," says the law, "get yourself an estate in land. The longer the better." (1)


Property law scholars have been interested in Garner v. Gerrish (2) because it is a decision that presses at the boundaries of leasehold doctrine. As such, it is covered in various first-year property law textbooks. (3) Its unique fact pattern makes it useful as a means of helping students understand the differences among leaseholds for a term of years, the periodic tenancy, and the tenancy at will. The landlord in Garner, Robert Donovan, drafted a lease on a pre-printed form, writing in the terms of the lease that would be fulfilled. (4) The lease was not written with the advice of counsel. (5) The most significant clause of the lease stated that only the tenant, Lou Gerrish, had the right to terminate the lease. (6) Donovan then died and the lawyer for his estate, Robert Garner, hoped to terminate the lease. (7) The issue at stake was whether this clause in the lease should have been taken to grant both the landlord and the tenant a right to terminate as a matter of property law doctrine and as a matter of New York state policy. (8) The Court of Appeals held that because only the tenant had the right to terminate, the landlord in effect gave the tenant a determinable life estate. (9)

How then, have scholars viewed the opinion? David M. Becker argued that the decision fell into a category of cases notable for their "deviant language," a common phenomenon found within property law and contract. (10) In these types of cases, courts are called upon to determine the meaning of inelegantly drafted terms, where ambiguous language meant the parties' rights and responsibilities could not be easily determined, thus creating a dispute for courts to resolve. (11) Thomas W. Merrill and Henry E. Smith have argued instead that the decision indicates the possibilities of creating new forms of property: the leasehold tenant's life estate, a blend of leasehold and life tenancy doctrines. (12)

Becker observes that property law limits the "species of ownership that have evolved over time. (13) These "are described and distinguished in terms of their potential duration." (14) Durational choices, in turn, influence the benefits and responsibilities that accrue. Property law limits these forms of ownership for the purposes of uniformity and in the name of predictability. (15) Becker argues that this restriction is harmful, in that there are countervailing rationales for supporting creative use of legal forms--"intent, custom, fairness and other policy considerations--because the benefits of ad hoc determination far outweigh the costs of inconsistent treatment of such language." (16) Thus, precedent should be ignored and standard forms rejected, especially because cases that decide the meaning of deviant forms do not have any serious value as precedent, merely because the deviance in the language ensures their rarity. (17)

Thomas Merrill and Henry E. Smith, in considering Garner, wonder in turn whether courts in the future will defer to parties' intentions to create newer forms of property rights, in rejection of the perspective that there is only a limited number of property law forms--the "numerus clausus" principle: Donovan and Gerrish could create a life estate or a lease. (18) If they chose the lease, it could be a term of years, a periodic tenancy, or a tenancy at will. (19) Would we want, if others followed the "do it yourself" model they pursued, the unorthodox terms to be upheld. Merrill and Smith urge that the "numerus clausus" should be followed, for several reasons. (20) For example, if the "do it yourself model" proliferated, high information costs would ensue as "a problem because third parties must ascertain the legal dimensions of property rights in order to avoid violating the rights of others and to assess whether to acquire the rights of others." (21)

I argue that the case can also offer a pedagogical lesson about the "do it yourself model," insofar as it offers a means of exploring the context of those cases when parties are not represented by lawyers. What sorts of situations call for greater cautionary measures in drafting documents? One can presume Donovan knew he could have had the aid of counsel in drafting the lease. Perhaps he did not want to involve lawyers because he was more interested in his social connection with Gerrish than the legal relationship of landlord and tenant. Garner and Gerrish had known each other for years. (22) Perhaps as a matter of privacy, he hesitated, because bringing in lawyers might have resulted in greater scrutiny than he might have wanted.

Merrill and Smith explain, though, that the decision to find a lease for life is not about Donovan and Gerrish only. It is about how the rest of us are affected, and the long term effects. (23) I agree with Merrill and Smith. I argue, however, that the problem also concerns the precedent existing in New York. New York precedent recognizes an aberrational and inefficient leasehold arrangement while not considering that the circumstances of the agreement were suspicious and raised questions both of unconscionability and undue influence.

Gerrish's life estate severely limited the ability of the estate to make a return on its asset. Efficiency and the "numerus clausus" principle should have been a factor the court considered in its determination.

How might property law faculty use the decision in teaching leasehold doctrines? In the Dukeminier text, the editors raise the "numerus clausus" principle discussed in the Merrill and Smith article, asking whether the decision violated " (24) it. They contend that it did. (25) Merrill and Smith address, in turn, the court's rejection of the "numerus clausus" principle as a holdover from feudal property law doctrines. (26) With the greater significance of modern day practices and rules contributing to the rejection of feudal formalities like seisin, the court reasoned it was within its purview to recognize a non-traditional form like a leasehold for life. (27) Yet, Merrill and Smith note that those very types of arguments in opposition to supposed feudal formalities are themselves "circular, formalistic and dustily feudal," if not historical. (28)

These scholars believe leaseholds are sufficiently different from fee simple interests to warrant such distinctions as between a leasehold for life and a fee simple. The traditional leasehold, regardless of its length, is presumed to be different from a fee simple. The presumption is that as long as there is a lease, it is subordinate both to the life estate and the fee simple, in that the true ownership rights are never held by the leaseholder. The tenant has only the right to use the property for the time period set forth in the lease, with the reversionary interest returning to the superordinate interest at the expiration of the lease. But in this case of a tenant holding a lease for life, the subsequent conveyance of the property from the landlord's widow to the tenant within a few years of the court's determination, indicates that the leasehold for life in this case meant, instead, a fee simple interest.

One might wonder, in light of the court finding a determinable life estate in the lease, how it is different from the type of long-term lease sometimes found in commercial contexts, such as the lease for 99 years? It is arguably different; those types of commercial leases often require of tenants certain obligations that would normally be undertaken by an owner in fee simple. Longterm tenants are expected to develop a certain stake in the property and are tasked with its development and upkeep. The tenant might pay the taxes and insurance and make improvements to the property. (29) Donovan, however, did not require that Gerrish fulfill any of those obligations, as he was presumably going to take care of them himself. Thus, it made sense for Donovan's widow to deed the property to Gerrish within a few years after she became the fee simple owner. Gerrish had the rights of a long term tenant while Donovan' s widow had the responsibilities of a fee simple owner.

None of the treatments of the case in the scholarly and textbook literature raise another aspect of legal pedagogy, the purpose of legal education. How might a new study of the case help teachers of property address the Carnegie report's challenge that law faculty develop a more practice-oriented curriculum? This debate over pedagogy is one rooted in the very development of legal education in the United States. (30) With the rise of Langdellianism, the study of law came to be seen as a "science" in which students would study cases to discover and decipher the legal doctrines found in the holdings. (31) This new pedagogical approach was contrary to the form of legal education, the apprenticeship method, which had been predominant beforehand. Young law trainees used to work with practicing lawyers in order to learn their craft. However, in today's world of legal education, students are introduced to the craft of lawyering in their legal research and writing classes, in internships, or in clinical classes. Otherwise, they wait until they graduate. (32)

Couldn't doctrinal faculty cultivate in their students the skills they will need once they begin practice? Moreover, couldn't law and society scholarship be a means of demonstrating to students the implications of what practice means "in the real world"? Law wedded purely to legal doctrine and not grounded in practice is meaningless. Lawyers do not argue cases in a vacuum separate and apart from the social and cultural aspects of the cases that they bring before the courts. Similarly, judges do not easily divorce themselves from the social and cultural impacts that influence their perceptions and decision-making. It behooves law students to understand what motivates the development of legal...

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